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City of Sheboygan v. Zimbal9/8/2004
been impaired ... doesn't provide probable cause." We assume that Jason is referring to the statement of the witness on the scene that the truck driver was "definitely" intoxicated.
. We agree with Jason to a point. The opinion of a citizen witness, by itself, is not enough for probable cause to arrest a person for driving while intoxicated. But that is not all the police had. They had evidence that Jason had hit a car, that he knew it, that he drove up on a neighbor's lawn, that he left the scene, and-this is from Jason's own mother-that Jason had urinated on a chair due to his level of intoxication. All of these factors, taken together, are more than sufficient to justify the arrest.
. The second issue is the non-consent claim. Jason cites familiar law that officers pursuing a person for violating the law may not enter a private home to retrieve that person, even if there is probable cause to arrest, unless there are exigent circumstances or unless there is consent to enter. He correctly points out that no exigent circumstance existed here, and we will assume without deciding, that at the time the officer first arrived at the door, until the time she learned that Jason had urinated on a chair due to his intoxication, she had no probable cause to arrest. Thus, Jason posits, the only way the officer was going to have contact with Jason was if she could gain consent to enter. Because that consent was not forthcoming, Jason argues that the eventual contact with and resultant seizure of Jason was illegal.
. But, as the City of Sheboygan points out in its responsive brief, the officer never crossed the threshold of the Zimbal home to retrieve Jason. Jason came out of his home and was arrested once outside. So, none of the cases Jason cites-and we do not feel the need to cite or discuss them here-are factually on point.
. In reply, Jason hones his theory. Jason claims that he only came out because police threatened to get a warrant to enter the home if Jason's father, who had refused entry, did not cooperate and allow the officer into the home. He further asserts that because the hit-and-run was not the type of offense for which a warrant could be secured, it was not proper for the police to claim that they could get a warrant if the father did not cooperate. Jason then argues:
By threatening the Defendant's father with prosecution, by threatening to obtain a warrant, and by asserting the existence of probable cause where it did not exist, the police essentially forced the defendant's father to act as an agent of the police. Therefore, when the police compelled the Defendant's father to enter the home and retrieve the Defendant, it is tantamount to the police entering the home and doing the same.
. Jason cites no case on point for his novel proposition that the father became the surrogate police infiltrator of the house due to illegal police coercion. But he does cite State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W. 2d 316 (Ct. App. 1997), as tangential support. In that case, officers entered a suspect's room, uninvited and unannounced. Id. at 471. They made a sobering use of force, threatened to stay there until a search warrant was obtained and told the suspect that they could get a warrant if they wanted to. Id. at 471-73. We observed that police may not, by misrepresentation, threaten to obtain a search warrant when there are no grounds for a valid warrant. Id. at 473. We further held that the officers in that case had no right to imply that they could sit in the suspect's home for two hours while a warrant was being obtained. Id. We concluded that the officers' overall shady conduct intended to lead the suspect to believe that resistance to a search was futi
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